Appeals court rules feds can withhold criminal mug shots

The U.S. Sixth Circuit Court of Appeals ruled today that the public does not have a right to see mug shots of criminal defendants in federal court. In a 9-7 decision, the 6th circuit said defendants "enjoy privacy interests in their booking photos."privacy rights.(Photo: Free Press File Photo)Buy Photo

A federal appeals court has ruled that federal authorities can withhold criminal mug shots, concluding that the Internet and social media have made booking photos more "embarrassing and humiliating" than ever before for defendants, and that the accused are entitled to privacy rights.

"Twenty years ago, we thought that the disclosure of booking photographs, in ongoing criminal proceedings, would do no harm," the 6th Circuit Court of Appeals wrote in today's 23-page opinion. " But time has taught us otherwise. The internet and social media have worked unpredictable changes in the way photographs are stored and shared ... they can be instantaneously disseminated for malevolent purposes ... these images preserve the indignity of a deprivation of liberty, often at the (literal) expense of the most vulnerable among us."

In a 9-7 decision, the 6th Circuit ruled in favor of a longstanding Department of Justice policy to keep mug shots private, concluding that criminal defendants "enjoy a non-trivial privacy interest in their booking photos."

The Detroit Free Press, which is the lead plaintiff in the lawsuit and has the backing of about 60 news organizations nationwide, adamantly disagrees. Mug shots have been released by state jurisdictions, including Michigan, for over 100 years, argue the newspaper's lawyers, who are considering an appeal to the U.S. Supreme Court.

"People have a right to know who the government is prosecuting, and for what. Booking photos tell the 'who' story in a way that a (defendant's) name alone can't. They literally put a face on the government's prosecution, all the better for the public to see what the government is up to," Free Press attorney Herschel Fink has argued.

Washington, D.C., appellate attorney Robert Loeb, who argued the case on behalf of the Free Press, said the 6th Circuit ruling confuses embarrassment with the right to privacy -- they're not the same thing. He said the federal government isn't concerned about the privacy rights of defendants, but about having control over information, noting the FBI has numerous mugshots of defendants on its website, some of which stay up for years.

"They just want their own discretion," Loeb said. "It's about government control of information to the press."

The 6th Circuit now stands in line with two other federal appeals courts, which have also favored withholding mug shots from the public view. But the Free Press isn't convinced the fight is over.

"We knew from the oral argument in Cincinnati that the court was very divided on the issue. The resulting 9-7 split confirms that," Fink said today. "The strong dissenting opinion gives us support as we consider whether to ask the Supreme Court to give finality to this two-decades-long fight by the Free Press for transparency in the criminal justice system."

The case involves the booking photos of four Highland Park police officers, who were charged in 2013 with multiple public corruption crimes. They were later convicted.

The Free Press filed a Freedom of Information Act request for the officers' mug shots with the U.S. Marshal's Office. But the Marshal's Office denied the request. So the Free Press, which has won four lawsuits over the issue -- sued again.

Last August, a 6th Circuit panel ruled in favor of releasing mug shots, but still urged the full court to take up the matter. It conceded that defendants are entitled to privacy rights, noting that FOIA includes a provision for excluding the release of material collected for law enforcement purposes if that release "could reasonably be expected to constitute an unwarranted invasion of personal privacy."

"Booking photographs," the judges wrote, "convey the sort of potentially embarrassing or harmful information protected by the exemption: they capture how an individual appeared at a particularly humiliating moment immediately after being taken into federal custody."

Moreover, they wrote, booking photographs are available on the Internet long after a case ends.

The full panel agreed, noting that numerous mug-shot websites have cropped up over the years, making it easy for prospective employers and other acquaintances to access booking photos, "hampering the depicted individual's professional and personal prospects."

"In 1996, this court could not have known or expected that a booking photo could haunt the depicted individual for decades," the court wrote. "Experience has taught us otherwise."

Seven judges disagreed, arguing other means could be used to achieve a balance between reputation concerns and the free flow of public information. For example, they wrote in their dissent, website operators could be required to remove booking photographs of those acquitted. Or, an individual whose arrest record has been expunged could sue a website for portraying them in a bad light.

"Today's decision obscures our government's most coercive functions -- the powers to detain and accuse -- and returns them to the shadows," the dissenters wrote. "Today's decision, which deprives the public of vital information about how its government works and does little to safeguard privacy, is not the correct answer."